A Farewell To Luanne Runge

As you may have heard, GWB shareholder Luanne Runge, who has been with the firm for more than 20 years, recently left to become the Associate Executive Director of the Liberty Fellowship. We are very proud of Luanne and wish her the best as she embarks on this new adventure and career. Luanne has always been a great success in both the legal field and the community, serving on many state and local boards. Recently, she completed a term as chairwoman of the Greenville Chamber of Commerce, a huge honor for her and our firm.

According to the Liberty Fellowship’s press release, Luanne “will focus on capital Fellow selection – interviewing nominees and building each class mosaic – as well as strategy and planning for the three Fellow seminars hosted by Liberty Fellowship annually.” In fact, Luanne herself graduated from the Liberty Fellowship program in 2009.

If you’re not familiar with the Liberty Fellowship, it describes itself as follows:

Liberty Fellowship is a statewide leadership initiative founded by Anna Kate and Hayne Hipp, Wofford College and the Aspen Institute. Through the Fellow program, Liberty Fellowship seeks to inspire outstanding leadership in South Carolina, empowering the state’s leaders to realize their full potential. Fostering a values-based approach, Liberty Fellowship exposes rising leaders to diverse perspectives, critical thinking, and intellectual and personal development.

If you’re interested in the Liberty Fellowship, please click here for more information.

We’d certainly be remiss if we didn’t mention that Luanne was an early supporter of the Abnormal Use Products Liability Law Blog. If memory serves, she may have been its very first proponent. As we have often said, we here at the blog have posted every business day since the first Monday in January 2010. In 2009, there was much discussion at the firm about whether or not to start a law blog, and if so, how such a blog might be administered. Back then, Luanne, serving as the firm’s chairwoman of its New Markets Committee, led the discussion of the merits of beginning a firm blog. Without her vision and leadership at that time, this enterprise may never have come to be, and of course, you know how much fun we’ve had here since then.

We will certainly miss Luanne, having worked with and alongside her for many, many years at Gallivan, White, & Boyd, P.A. Certainly, we wish her the best in her new endeavor.

By the way, you can follow Luanne on Twitter here.

Friday Links

mcd

As we complete this week’s coverage of the twentieth anniversary of the Stella Liebeck McDonald’s hot coffee trial, we thought it might be fun to revisit some of our past hot coffee and food related posts. But first: Above, you’ll find the cover of McDonaldland Comics #102 which we felt we had to share in light of this week’s theme. We’re not entirely certain what Ronald McDonald is doing on the cover, but surely, he is being contributorily negligent. And with that, we return to the Liebeck case one last time this week to direct you to some links to our favorite blog posts on that and other hot food and beverage cases.

So, without further ado, here they are below (including the posts that ran this week on the subject):

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony” (Jim Dedman, August 13, 2014).

20 Years of McDonald’s Hot Coffee Case Rhetoric” (Nick Farr, August 12, 2014).

20 Years Ago This Week: The Stella Liebeck McDonald’s Hot Coffee Trial” (Jim Dedman, August 11, 2014).

The Stella Liebeck McDonald’s Hot Coffee Case FAQ” (Jim Dedman, January 25, 2011).

Spill the Beans: The Truth Behind Susan Saladoff’s “Hot Coffee” Documentary” (Nick Farr, January 24, 2011).

Abnormal Use Cited in Today’s New York Times on ‘Hot Coffee’ Documentary” (Jim Dedman, June 26, 2011).

Film Review: Susan Saladoff’s “Hot Coffee” Documentary” (Nick Farr, June 27, 2011).

Statutory Construction: What is a “Documentary” Film?” (Jim Dedman, October 13, 2011).

Thoughts on “Hot Coffee” Director Susan Saladoff’s Appearance on “The Colbert Report”” (Nick Farr, October 26, 2011).

The McDonald’s Hot Coffee Case: Distinguishing Between Facts and Theory” (Nick Farr, March 19, 2013).

Photograph of the Day: The Canadian Hot Coffee Warning?” (Nick Farr, April 24, 2013).

The New York Times Reflects On Post-Liebeck Life” (Nick Farr, November 7, 2013).

Hot Queso Jurisprudence in Pennsylvania” (Jim Dedman, December 12, 2013).

Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case” (Jim Dedman, April 24, 2014).

What If Liebeck v. McDonald’s Was Just Another Case? – Thoughts From A Plaintiff’s Attorney

[EDITOR'S NOTE: In an effort to bring you a different perspective on the infamous Stella Liebeck McDonald's hot coffee case, we have asked Plaintiff's attorney and award winning blogger Max Kennerly to contribute a guest editorial to Abnormal Use as we observe this week's twentieth anniversary of the Liebeck trial. We here at Abnormal Use, as defense lawyers, view the case a bit differently than Max. However, that's one of the reasons why we invited him to contribute a piece this week. We thank him for his time and willingness to participate in this project. Without further ado, you can find his post below. - JMD]

Medical malpractice has killed more Americans in the past week than Ebola has killed worldwide since the first recorded outbreak in 1976. Two months ago, a Wal-Mart truck driver who had been awake for 25 hours, as permitted by company policy, plowed into a van full of comedians. But when it comes to tort law, those issues stand in the long shadow of a 49-cent cup of coffee served a week after Wayne’s World hit theaters.

It shouldn’t be that way, but it is, and so there is use in continued legal anthropology of the Liebeck v. McDonald’s case. That said, I’m not going to make another argument for the damage that misunderstandings about the Stella Liebeck case have done to the civil justice system. Go watch “Hot Coffee“ or read Priceonomics. Instead, I’m going to review the case as if it was just another personal injury case.

With that in mind, let’s first discuss how the case likely looked to the plaintiff’s lawyers when they initially filed it.

Trial lawyers sometimes classify the damages of cases as trivial, minor, severe, catastrophic, or death. “Trivial” cases involve fleeting emotional harm, like bugs in food and rude doctors. “Minor” cases involve soft tissue injuries and hairline fractures that heal. “Severe” cases involve major breaks of bones, lacerations, significant losses of blood, and some burns.

Stella’s third-degree burns over 6 percent of her body would make her case at least “severe.” Keep that in mind as we go forward.

Plaintiff’s lawyers routinely see cases in which a hot water device fails and burns someone. Just this year, I saw a case where the water heater at a motel malfunctioned, producing over 200° water and an instant burn when a child turned on their room sink, and I saw a case where a professional coffee machine kept re-boiling the hot water, producing a blast of scalding steam when an employee tried to change the brew basket.

Stella’s burns are far worse than what you would expect from spilled coffee; they’re more like burns from frying oil. If I saw her file come into our firm, I wouldn’t assume I was going to challenge McDonald’s nationwide coffee-making process. Rather, I would assume that either the restaurant had a broken coffee maker or that an employee had messed up the setting.

Is there an element of comparative fault to the case? Sure, but Stella – a sweet, credible grandmother – didn’t do anything wildly unreasonable. She didn’t put the coffee to an “abnormal use.” She put the cup between her legs, which was, and is, common. Negligent? Maybe, and her recovery could be reduced accordingly.

Then there’s another factor that likely contributed to Stella’s decision to find a lawyer and the lawyer’s decision to take the case: McDonald’s acted like complete jerks. When one of your customers is severely injured by your product, and all they want is compensation for medical expenses and lost income, you should talk to them. Yet, McDonald’s treated her case as trivial, the way they would treat a bug-in-the-hamburger case, offering her $800. That’s the type of “from good hands to boxing gloves” treatment that is the epitome of social injustice: a corporation refusing to pay its dues because it knows the injured consumer lacks the will and the resources to fight. But Stella and her lawyer did fight.

Now, let’s look at the case post-verdict, as we would any other personal injury trial. At core, the case boils down to – pardon the pun – one purely factual question and one mixed legal–factual question.

The purely factual question is: how hot do you think the coffee was?

This isn’t exactly brain surgery. Like jurors, we should take in what the experts at trial said, but the experts differed by 50°! Like jurors, we should use our common sense and common experience to guide us.

My water heater at home is set to 130°, a balance between the 120° recommended by the by the CPSC to prevent burns and the 140° recommended by OSHA to eradicate Legionnaires’ disease. It’s a balance: I want to minimize the risk of disease, but I don’t want to literally scar my kids for life if they turn the faucet the wrong way. As the CPSC says, “Most adults will suffer third-degree burns if exposed to 150 degree water for two seconds. Burns will also occur with a six-second exposure to 140 degree water or with a thirty second exposure to 130 degree water.” Hence my compromise.

When I brew my coffee, though, I set the kettle to 190°, brew the coffee for about 5 minutes, then add some milk or cream, so that the coffee is approximately 137° (I measured it) by the time I start drinking it.

My “common sense” tells me that the 130° water in my faucet is not hot enough to give me anything like the burns Stella suffered, whereas the 190° water from my kettle is. So I did an experiment: I set my kettle 130°, poured it into a cup, and then stuck my finger in it with a timer. I lasted about 5 seconds before I felt compelled to remove my finger, and suffered no injury. Then I tried it again at 190° and I couldn’t even get the tip of my finger in, because my instinct made me to remove it. Common sense, right? Common experience, too.

But not to McDonald’s. As recounted in the excellent FAQ file on this site, McDonald’s asserted that Stella’s third-degree burns “could have been sustained at temperatures as low as 130°F” and claimed that “the fact that the coffee that Ms. Liebeck spilled on herself may have been slightly or even significantly hotter than 130°F does not mean that her injuries were worse or more extended than it would have been otherwise.”

McDonald’s defense was stupid and insulting. Whenever someone lectures me about my chosen profession by way of “that spilled coffee case,” I tell them: “McDonald’s tried to convince a jury that 130° water causes burns just as bad as 180° water.” The interlocutor usually stares at me in disbelief then insists that can’t be true. It is true: McDonald’s tried to convince the jury that a small cup of 130° coffee can cause third-degree burns all across a person’s groin and thighs just the same as coffee at 140°, 150°, 160°, 170°, and 180° or higher.

The coffee was obviously much closer to 180° than to 130° — it might have even been higher — and McDonald’s argument was transparently frivolous. Little wonder the jury found against McDonald’s on that.

Once the jury resolved that purely factual question, they needed to resolve this mixed legal–factual question: at what temperature it is unreasonable to serve coffee at drive-through in a deformable cup with an unsecured lid? Whatever you think the answer should be, in the trial of Liebeck v. McDonald’s, it’s quite likely the answer was: any temperature substantially above 130°.

Sound crazy? My own breakfast coffee made at just the right temperature where I can start drinking it might meet that, and surely that can’t be the standard — but thinking like that is just letting my own personal policy preferences intrude upon the actual evidence at trial. 130° is the number McDonald’s suggested to the jury.

Plaintiff’s burn specialist testified that coffee should served around 160°, and that anything over 180° was not fit for consumption. McDonald’s, however, built their entire defense around 130°. They had a doctor testify that 130° is the temperature at which severe burns are inevitable, a unique threshold above which temperatures are irrelevant. Then they had another witness testify that no other coffee place served coffee below 130°.

McDonald’s drew that 130° line in the sand. Was a jury supposed to ignore the obvious implications of that line? To only accept McDonald’s arguments if they helped McDonald’s? McDonald’s effectively admitted that it served every single customer coffee hot enough to cause third-degree burns over a substantial part of their body, and that it had no interest in doing otherwise — and thus effectively admitted the need for punitive damages, too.

We’ll never know what might have happened if McDonald’s had offered Ms. Liebeck a more reasonable settlement before she filed her lawsuit, or if it had treated the incident with the dignity and importance it deserved. But I know this much: McDonald’s approach to the case made the result inevitable.

BIOGRAPHY: Max Kennerly is a plaintiff’s attorney at The Beasley Firm in Philadelphia, Pennsylvania. He blogs at Litigation & Trial.

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony

One chilly morning in February of 1992, a routine purchase of a cup of coffee in Albuquerque, New Mexico forever transformed the tort reform debate. As a result of the spill of that cup of coffee, 79 year old Stella Liebeck would become the world’s most famous civil litigant. Twenty years ago this week, in August of 1994, Liebeck took her case to a Bernalillo County jury, which awarded her $200,000 in actual damages (reduced by 20 percent due to a comparative fault finding) and $2.7 million in punitive damages. The court later ordered that a new trial would be held due to the “excessive” amount of punitive damages unless the Plaintiff accepted a remittitur of the punitive damages award to $480,000. A few months later, the case settled for a confidential amount, forever establishing it as a fixture of litigation lore and urban legend.

The two week trial would become the most discussed civil case of its time and fodder for late night comedians. Despite the passage of two decades, the underlying facts of the case continue to be debated and myths abound, in part, because there is no widely accessible official account of the case. Because the case settled a few months after its notorious verdict, no appellate court issued an opinion setting forth its key facts and legal issues. Even today, civil litigation is not often covered in detail in the media, and in 1994, the nascent Internet had yet to provide access to online dockets, pleadings, and the like.  So it was that a 1994 Wall Street Journal article and the late night talk shows shaped the opinions of the case for years to come.

In his opening statement, Liebeck’s attorney explained to the jury that Liebeck “received this eight ounce cup of coffee handed to her by her grandson, and placed it in between her knees to hold it because she had difficulty in removing the plastic lid.” Of course, the trial involved a host of expert opinions, warning issues, and damages testimony. But, at its essence, the case involved the actions of Liebeck. All these years later, the trial testimony of Liebeck and her 30 year old grandson, Chris Tiano, are helpful in dispelling the myths that have arisen over the years.

First and foremost, despite what you may have read, Liebeck was not driving the vehicle. In fact, Tiano was driving the 1989 Ford Probe as they ordered breakfast that morning. Liebeck was in the front passenger seat. The two had just driven Liebeck’s brother from Santa Fe to Albuquerque to drop him off at the airport. After that errand, they visited the drive-through of the McDonald’s on Gibson Boulevard. At trial, Tiano estimated that they at the restaurant sometime before 8:30 a.m. that fateful Thursday morning. On August 9, 1994, Tiano, the first trial witness, recalled that they “ordered a couple of value meals,” with him ordering a Sausage McMuffin and orange juice and his grandmother choosing an Egg McMuffin and a coffee. Liebeck testified that Tiano requested the cream and sugar for her coffee. He drove to the window and the McDonald’s employee “handed the drinks out first” and he “handed it over” to Liebeck. The next day of trial, August 10, Liebeck testified that she did not believe that Tiano requested a cardboard tray for the beverages.

The vehicle was not in motion when Liebeck spilled coffee on herself. After taking the drinks and bag of food, Tiano drove from the drive-through to a parking space in the McDonald’s lot. Liebeck testified that Tiano parked “so [she] could put cream in [her] coffee.” On cross examination, Liebeck agreed that the cup’s lid was on “pretty snug” and that the cup did not leak at the time it was handed to her.  She did not notice the pull away tab on the lid (which existed, the defense contended, to permit the addition of cream and sugar to the coffee). Tiano testified that Liebeck “started to fix her coffee” as he was “trying to get [his] meal organized” because he “had to run some errands that morning.” Specifically, Tiano planned to visit the Albuquerque Country Club so that he, an assistant golf professional, could pick up a check for his golf pro father.

Liebeck positioned the cup of coffee between her legs in an attempt to open the lid to add cream and sugar.  Liebeck testified that she initially looked for somewhere else to put the cup of coffee before deciding to hold it between her knees. On that point, she testified that she “took the cup and [she] tried to get the top off” but she “couldn’t hold it, so [she] put it between [her] knees and tried to get the top off that way.” In so doing, she “accidentally” spilled the coffee into her lap when the lid “slid” and “tipped off.”  When asked on cross if she still felt it was wise to hold a cup of hot coffee between one’s knees, she replied that doing so was “just a normal thing to do” as she “wouldn’t expect [the lid] to slide over.” Immediately after the spill, Liebeck felt “excruciating, searing pain.”  Tiano testified that he “looked over” after Liebeck “started screaming” and saw “the cup was inward.” Liebeck testified: “I went into shock. I became all clammy, cold, and was fainting and throwing up or I thought I was throwing up.” The photographs of Liebeck’s injuries – made public in the recent HBO documentary “Hot Coffee” – illustrate the severity of the injuries sustained by Liebeck as a result of the spill.

After the spill, Liebeck and Tiano did not return to the McDonald’s for assistance. Neither Tiano nor Liebeck testified that they returned to the McDonald’s to seek help after the spill. Tiano exited his side of the vehicle and ran to the other side to investigate the reason for his grandmother’s pain and discomfort.  He testified that he shouted to his grandmother that “it’s just coffee. It’s just a hot water burn, nothing serious.”  He further testified that he “let her walk around in the chilly air” and  “she cooled off and got back into the car.” He “thought everything was fine” and the two then “drove down the road” to address his aforementioned errands. At least during their trial testimony, neither of the two witnesses mentioned seeking help from the employees of the McDonald’s franchise.

After leaving the McDonald’s parking lot, Tiano and Liebeck did not immediately seek medical care. Tiano proceeded to the Albuquerque Country Club as planned, and as he testified at trial, Liebeck began to feel nauseous, but he was “still not thinking it’s very serious.” Tiano stopped the vehicle on the side of the road because Liebeck felt she might vomit. As they were stopped, an observant resident emerged from her home to see if they wanted her to call 911. They declined and proceeded again to the country club. Once there, Tiano testified that he left Liebeck in the car as he went to retrieve the check. It was only when he returned to the vehicle that Liebeck requested that they find a local fire station to seek first aid. Ultimately, they drove to Northside Presbyterian Hospital, where she was seen immediately for medical treatment.

20 Years Ago This Week: The Stella Liebeck McDonald’s Hot Coffee Trial

As we noted last Friday, August 2014 heralds the twentieth anniversary of one of the most famous civil cases in American history: the Stella Liebeck McDonald’s hot coffee case. Tried on August 8-12 and 15-17, 1994 in New Mexico state court, the case produced a verdict that has continued to reverberate throughout our culture. (Reminder: Liebeck was awarded $200,000 in compensatory damages, a number which was reduced to $160,000 as a result of a patrial contributory negligence finding by the jury. She was also awarded $2.7 million in punitive damages, a figure which was later reduced to $480,000 by the court.). As we have noted in the past, the case settled prior to the issuance of a formal appellate court opinion, and thus, there is no helpful formal account of the matter’s factual and procedural history. This has led to some confusion surrounding the facts, which we’ve attempted to remedy by publishing our Stella Liebeck McDonald’s Hot Coffee Case FAQ. This week, in observance of the trial’s 20th anniversary, we will explore the case in a bit more detail than usual and offer some critical thoughts that go beyond the traditional rhetoric.

Why do so? As the years have passed, the conventional wisdom about the case has begun to shift. For the longest time, the story represented the tale of a negligent consumer who received a large verdict from a sympathetic jury despite her clear contributory negligence. Now, however, a new narrative has emerged. There is now a group that believes that the uproar over the verdict was the result of a nefarious corporate strategy to misrepresent the true underlying facts of the case in an effort promote tort reform. This new line of thinking gained traction with the 2011 release of Susan Saladoff’s editorial documentary, “Hot Coffee.”

Not too long ago, we noticed that one of our favorite blogs, the popular and influential Boing Boing, revisited the McDonald’s hot coffee lawsuit. In that post, author Cory Doctorow, in introducing a linked piece by Alex Mayyasi of Priceonomics, noted as follows: “Remember the old lady who sued McDonald’s for millions because she burned herself by spilling hot coffee in her lap? It never happened. What actually happened was much more sordid, and the deliberate distortion of the story — which is ultimately about a company that caused repeated, horrific and preventable injury to its customers — is a tidy story about how corporations have convinced us that they are victims of out-of-control tort lawyers.” In his article, Mayyasi argues that the verdict led to efforts to erode the Seventh Amendment right to a jury trial. Countering the argument that the case is an example of the need for tort reform, Mayyashi contends that the traditional understanding of the Liebeck case is “incredibly distorted.,” as Liebeck herself “was not greedy and her lawsuit was not frivolous.” He goes so far to conclude that the Liebeck case is “an example of America’s civil justice system working as intended.”

In his piece, Mayyasi relies a good bit on Saladoff, a former plaintiff’s attorney about whom we have previously written here. In so doing, Mayyashi shares Saladoff’s belief that “frivolous lawsuits” are a “myth.” (Were that truly the case, we’d have little to discuss here at Abnormal Use.). To his credit, Mayyasi identifies Saladoff as a “former trial lawyer” who has “represented clients in liability lawsuits” and suggests later in the article that “as a trial lawyer . . . [she] is not an objective outsider but someone building a case for her side.” (Many media outlets, in reviewing or reporting on “Hot Coffee,” neglected to mention Saladoff’s history.). Further, despite Doctorow’s tough introduction to the piece, Mayyasi concedes several points, including the fact that “[c]offee is often served commercially at temperatures approaching or equal to that served to Stella Liebeck; finding Liebeck 80% or 100% responsible may be reasonable.” He also indicates that the McDonald’s representatives’ purported lack of concern about the alleged 700 complaints of hot beverage related incidents “may have seen reasonable given the scale of McDonald’s operation.” Those are some significant statements in a piece dedicated to Liebeck case and the purported erosion of the right to a jury trial.

Here’s how Mayyasi’s described the facts of the Liebeck case:

 After Ms. Liebeck bought her coffee and breakfast, her grandson, who was driving, pulled over so she could add cream and sugar to her coffee. Since his Ford Probe had no cup holders, she placed the cup between her legs. When she fumbled with the lid and spilled the coffee on her sweatpants, she began to scream.

….

She went into shock and her grandson rushed her to the emergency room, where she would undergo surgery and receive skin grafts. She had third degree burns on 6% of her body; the pictures of her injuries are shocking.

It is the gruesome photographs of Ms. Liebeck’s injuries – recently receiving prominence in Saladoff’s documentary – which have convinced many that Ms. Liebeck’s case must have had some merit. Despite the severity of her injuries, Liebeck elected to place the cup of coffee – with its warning “contents hot” emblazoned thereupon – precariously between her legs in attempt to open it and place her cream and sugar therein. How is it a distortion to recite those facts and argue that Liebeck’s contributory negligence should have barred her recovery outright? Can one not argue that the jury got it wrong, or that the defense should have presented a better case with the facts as known? (Interestingly, it is not entirely correct to say that “[Liebeck's] grandson rushed her to the emergency room.” Rather, her grandson, Chris Tiano, testified at the trial that after the spill he traveled to the Albuquerque Country Club to pick up a paycheck before taking his grandmother to the hospital.).

This week, we’ll explore these issues fully and even offer some interesting trivia about the case and even some of the witnesses. We hope you’ll offer your own thoughts on the case, as well.

Friday Links

mcdonaldland-comics-101

Above, you’ll find the cover of McDonaldland Comics #101 which, really, has no apparent legal theme. However, we bring this comic book cover to your attention today because it is the 20th anniversary of the infamous Stella Liebeck McDonald’s hot coffee trial. That’s right, dear readers! Twenty years ago today, on August 8, 1994, that fateful trial began. The case would soon become the most well known American civil trial. Next week, we’ll be discussing the case in much more detail. In fact, we’ll have a week’s worth of coverage!

Apparently, there is a new brewery in the Carolinas called Legal Remedy Brewing Company. How about that?

We dug this article by Jena McGregor from The Washington Post simply entitled “The out-of-office reply, deconstructed.” We’ve been receiving a lot of these lately, and we’re pleased to learn that there is a philosophy of sorts to crafting them.

According to Scientific American, the State of California is now legislating the ability to operate driverless cars. Reports Corinne Iozzio:

The law is finally catching up to driverless cars. As of September 16, the state of California—home of auto newcomer Google—will require test drivers to have a special license, like a trucker or school bus driver. They will need to be employees or contractors of the car manufacturer, complete safety training, and have clean road records. Carmakers themselves will have to apply for a testing permit annually, install manual controls and override systems in each car, submit incident reports and secure $5 million in insurance.

By the way, remember back in 2011 when Scientific American name checked the Abnormal Use law blog? Yes, we do, too.

Oh, and our favorite tweet of late came from our GWB’s own Ron Tate, who commented upon a recent deposition experience:

Existentialism and Legal Blogging

Recently, I found myself engaged in conversation with a past – and possibly future – legal blogger. The person in question – a lawyer who once regularly maintained a legal blog – had decided to abandon his site, perhaps due to lack of interest, perhaps due to lack of time. However, during the conversation, this former blogger revealed that he ultimately wished to return to the legal blogosphere. He had recently wiped the archives of his former blog from his site, but he wished to start anew with a fresh perspective and approach.

The dilemma: How to do so? And if so, when? It’s hard out there for seasoned blog writers and editors. As we here at Abnormal Use previously noted:

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy – becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

As noted above, the issue confronted by this legal blogger is similar to those who wish to start their first blog, as well. The task of creating a site and regularly contributing to it is daunting. We, as lawyers and writers, tend to think of a blog post as a tedious task on our daily checklist; something that we must stop what we are otherwise doing in order to place ourselves in front of the computer, stare at a blank screen, and hope above all things that a topic materializes in our mind. But as we have noted before, it is a much easier task than that.

We, as lawyers, have a myriad potential posts in us. Any anecdote, complaint, legal pet peeve, war story, or off-hand thought on the latest court opinion can itself become a blog post. Any story that we have told at a party, over dinner, or at lunch with colleagues is fodder for a legal blog. Further, one’s immediate – or reasoned – reaction to another’s blog post is, itself, a potential blog post. In fact, it may be that once a lawyer begins to think of all of these things as blog posts that many such topics will come naturally.

Here at Abnormal Use, we have certainly utilized this approach. In addition to covering the latest products liability court opinions, we also discuss the perils of pop culture references at depositions, legal pet peeves, the existential dilemma prompted by one’s temporary loss of an iPad, and Foursquare check-in’s at state and federal courthouses. Of course, we have also written about the state and federal products liability jurisprudence, social media discovery, and the latest recall news. But’s all fair game and good blog fodder.

The Rise and Fall of Orkut

You may recall that we recently expressed some surprise when a defense firm’s social media discovery at issue in a recent Kansas case referenced Orkut, Google’s social media network.

The request for production at issue in that case read as follows:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way [The Defendant] and/or the matters referenced in your Complaint.

At the time, we quipped: “How curious to see a reference to Orkut in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.” As you might suspect from our comment, Orkut has always been a bit of an obscure network, never reaching the popularity of Facebook or Twitter.

Well, on July 5, 2014, just a few weeks after our posts referencing the social network, Orkut sent out an email (entitled “A Farewell To Orkut”) to its users. It read:

After ten years of sparking conversations and forging connections, we have decided it’s time for us to start saying goodbye to Orkut. Over the past decade, YouTube, Blogger and Google+ have taken off, with communities springing up in every corner of the world. Because the growth of these communities has outpaced Orkut’s growth, we’ve decided to focus our energy and resources on making these other social platforms as amazing as possible for everyone who uses them.

We will shut down Orkut on September 30, 2014. Until then, there will be no impact on you, so you may have time to manage the transition. You can export your profile data, community posts and photos using Google Takeout (available until September 2016). We are preserving an archive of all public communities, which will be available online starting September 30, 2014. If you don’t want your posts or name to be included in the community archive, you can remove Orkut permanently from your Google account. Please visit our Help Center for any further details.

It’s been a great 10 years, and we apologize to those of you still actively using the service. We hope you will find other online communities to spark more conversations and build even more connections for the next decade and beyond.

With respect to litigation, this development suggests that lawyers should investigate claimants’ Orkut usage, if any, with all deliberate speed before the service ends later this year. Additionally, lawyers referencing Orkut in their discovery requests may want to update their forms in the coming months. Goodbye, Orkut.

Oh, and by the way, we referenced Orkut in our 2013 April Fool’s Day post.

TV Review: FX’s “Partners,” Starring Kelsey Grammer and Martin Lawrence

partners
Tonight, FX airs the first two episodes of “Partners,” a new legally themed sitcom starring television veterans Kelsey Grammer and Martin Lawrence as two unlikely law partners. Created by Robert L. Boyett and Robert Horn, “Partners” looks and feels like a tired sitcom of the eighties or nineties made modern only by occasional references to Twitter. Although the laugh track did its best to assist, “Partners” is not particularly amusing, a fault which must be assigned to the writers, as both Grammer and Lawrence have generated huge laughs in the past with much better material. Further, as you might imagine, “Partners” does not go out of its way to accurately depict the legal profession or the daily working lives of practicing attorneys. In the end, it’s a silly premise with a silly execution. Warning: Spoilers abound in the review below.

Grammer plays Allen Braddock, a 20 year veteran lawyer fired by his father from a prestigious Chicago law firm. We are told that he practices civil, criminal, and corporate law (and apparently, family law, as well, as we see) with a “success rate” of “89 percent.” His employment prospects are now grim,  as he is told by a former colleague that his father has poisoned the minds of the local bar such that “no respectable firm will hire [him] now.” Shortly after his termination, Braddock is summoned to a local courtroom by a judge seeking to sanction him for his abhorrent conduct during a past trial (which, incidentally, he won). The judge – who accuses Braddock of “misdirection, hiding behind technicalities, and something that was a very close cousin of jury tampering” – sanctions him by assigning him a handful of pro bono cases.

Meanwhile, Lawrence plays Marcus Jackson, an idealistic solo practitioner and community activist who has fallen on hard times. Now living with his mother and facing a devastating divorce, Jackson blames himself for the end of his twenty-two year marriage in part because he spends too much time at his law office. Choosing to represent himself in the divorce proceeding, Jackson has adopted a defeatist attitude and agreed to a settlement in which his wife will receive “70 percent of [his] assets and half of [his] law practice.” Appearing in court immediately after Braddock’s sanctions hearing, Jackson earns the sympathy of the judge, who continues the divorce hearing so that Jackson might obtain a more favorable settlement. After the hearing, Braddock and Jackson meet, and ultimately, Jackson agrees to retain Braddock to represent him in the divorce if Jackson will handle to pro bono cases previously assigned to Braddock. Thus begins the fractious relationship which ultimately leads to the two lawyers becoming law partners at the episode’s conclusion.

Much of the narrative is dedicated to Braddock and Jackson purportedly learning from each other as they trade insults about each other’s various differences. Rounding out the cast are Rory O’Malley as paralegal and law student Michael, Telma Hopkins as Jackson’s mother, Ruth, Edi Patterson as Jackson’s ambitious office manager and investigator Veronica, Danièle Watts as Jackson’s daughter, Laura, and McKaley Miller as Braddock’s annoyingly bratty step-daughter, Lizzie. At least in the first two episodes, we are not introduced to Jackson’s estranged wife or Braddock’s lawyer father.

Directed by Grammar, the pilot (titled “They Come Together”) primarily sets the stage to bring the two protagonists together. After Braddock agrees to represent Jackson, the two lawyers surreptitiously visit the residential quarters of a local church where Jackson’s wife volunteers and now live. (Some students of the law might call this “trespass.”).  They ultimately find themselves in Jackson’s wife’s bedroom – breaking and entering, anyone? – where they discover evidence of her infidelity. Thus, armed with this new evidence of an extramarital affair, Braddock is able to secure for Jackson a more equitable divorce settlement (and convince Jackson to move on from the experience). No one seems to question how the evidence was obtained or whether it was done so properly.

Directed by Joe Regalbuto, the second episode, “Let’s Have A Simple Gwedding,” centers around Braddock and Jackson’s pro bono assistance of a gay couple whose purportedly elite wedding planner has provided substandard services. Rather than crafting a demand letter threatening to sue the wedding planner for deceptive trade practices, Braddock and Jackson pose as a gay couple and “stage a fake consultation” in an effort to secure evidence of the wedding planner’s wrongdoing. When that approach fails, the two stage a fake wedding reception during which they find evidence that the wedding planner is “repurposing funeral arrangements,” recycling airplane food,  and pouring wine-in-a-box into far more expensive bottles. The lawyers obtain a refund for their clients and inform them that the wedding planner now faces “six months behind bars.” Apparently, all of this effort is provided by the firm at no cost to the clients, despite the fact that the clear evidence of fraud on the part of the wedding planner might lead to punitive damages or the recovery of attorneys fees under various deceptive trade practices and/or consumer protection statutes. So much for Braddock’s ability to generate revenue for the new firm!

Sadly, “Partners” appears to be another hackeyned sitcom with all the familiar tropes. Further, the writers and producers of “Partners” seem only to know of the practice of law from other bad televisions. Back in 2013, we here at Abnormal Use wondered why television programs so rarely depict discovery in civil litigation. In so doing, we speculated:

Is it that the writers of legal television shows themselves only know of our industry from other bad legal television shows?  Is it that the a program’s advisers do not have the breadth of legal experience to provide such anecdotes to the production?  Or is it that the traditional formula of a legal TV show is so well established and ossified that any deviation therefrom would simply require extra effort?

Really, both “cases’ depicted in the the episodes – Jackson’s divorce action and the potential claims against the wedding planner – cry out to be litigated. However, the writers prefer to treat the litigators as would-be detectives venturing out into the world to gather clues under false pretenses rather than as lawyers developing facts through a formal investigation or the discovery process. This is especially curious as the show has gone to great lengths to establish the existence of a competent non-lawyer investigator at the firm.

As a consequence, lawyer viewers may groan often as the narrative unfolds.

A few other notes on the show’s depiction of the legal process and the practice of law:

There are many, many “Lawyer As Witness” issues, meaning that Jackson and Braddock should be disqualified from representing their clients after becoming fact witnesses themselves.

How does Braddock determine that his “success rate” is “89 percent,” particularly when he practices across some many different areas?

How cynical a show is this that the judge “sanctions” Braddock by assigning him pro bono cases, as if pro bono cases exist as a deterrent to bad behavior?

The terms of Jackson’s divorce settlement made us wonder whether non-lawyers in Illinois are permitted to own a percentage of a law practice.

Shortly after Braddock and Jackson meet, Braddock advises: “It’s never a good idea to represent yourself in a personal case, you know that. You should have had another lawyer representing you all along. You’re too emotionally involved.” That’s actually good advice, but Braddock himself violating that very rule by appearing on his own behalf at a hearing during which he was sanctioned for misconduct.

“’Too far’ is how you win cases,” quips Braddock after Jackson advises him that is going, well, “too far.” And we wonder why litigation is so costly . . . .

The first two episodes of “Partners” air tonight on the FX Network at 9:00 p.m.

Friday Links

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 Okay, so how’s this for a legally themed comic book cover? Above, you’ll find the cover of Uncanny X-Men #23, published just a weeks ago in 2014. The cover is simple: It depicts “The Last Will and Testament of Charles Xavier,” who we all know to be the leader of The X-Men. What is his testamentary intent? Did he comply with all of the formal prerequisites required of the execution of a will? Who were the witnesses to its execution? We assume that with such a fancy cover page that it is not a holographic will. We’ll review the issue and report back dear readers. In fact, this is the same comic book issue that we mentioned last week due to the fact that a part of the narrative is set in Charleston, South Carolina.

Here’s some news: In this month’s ABA Journal, our editor Jim Dedman offers two contributions to its “12 Movies With Pivotal Lessons Featuring Lawyers” article. As a part of that piece, he was asked to choose a significant legal scene from a film and identify some of the lessons that lawyers can learn from it. Of course, he chose to write about the expert witness sequence in My Cousin Vinny (a film to which we here at Abnormal Use dedicated a week’s worth of posts on the occasion of its twentieth anniversary back in 2012). As for his other contribution, he chose to discuss the wonderful Wilford Brimley scene in Absence of Malice.

Here’s how he describes the scene in Vinny:

In the final trial sequence, Vinny calls an unsuspecting Mona Lisa to the stand to testify as an expert witness for the defense. In so doing, he draws an objection from the prosecutor (Lane Smith), who rises to question Mona Lisa’s expertise. He then conducts a brief voir dire of Mona Lisa—which, curiously, takes place in the jury’s presence—to determine whether she is indeed qualified to testify. Impressed by the depth of her automotive knowledge, the prosecutor withdraws his objection and the judge permits her to testify. Through her testimony, Vinny wins an acquittal for his clients.

As for Absence of Malice, he sets the scene as follows:

No summary can do the final sequence justice; it must be seen to be fully experienced. As Gallagher’s efforts to “get even” begin to come to fruition, Wells convenes a meeting of all of those involved in the Gallagher affair—including the federal prosecutor, the district attorney (to whose campaign committee Gallagher has made anonymous contributions so as to cast doubt upon him), Carter and the newspaper’s lawyer—in an office conference room. The federal prosecutor attempts a mock cross-examination of Gallagher to prove his revenge scheme, but Wells takes over the meeting and queries Carter about her source into the investigation of Gallagher. Carter admits she received the information from the federal prosecutor, and following that admission, Wells—after commenting on the First Amendment and the purported reporter’s privilege—tells everyone where they now stand.

You’ll need to visit the ABA Journal‘s site to see the potential lessons from these films. You can read the Absence of Malice article here and the My Cousin Vinny article here.

By the way, we once tried to interview Mr. Brimley about his fateful scene, but alas, it was not in the cards. But it resulted in an interesting story about our attempts to do so, which you can revisit here.